Rodriguez v. Moore

          FINDINGS AND RECCOMMENDATIONS

          DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's unopposed motion to dismiss (ECF No. 29). Respondent argues the petition should be dismissed for failure to exhaust state court remedies.

         I. BACKGROUND

         A. State Court Proceedings

         There appears to be some confusion as to the record of petitioner's state conviction. In his petition, petitioner claims to have been convicted of assault and battery in San Joaquin County Superior Court on January 14, 2019. See ECF No. 1, pg. 1. He alleges to have submitted an appeal, but his petition states that the appeal was submitted in 2018, a year prior to his supposed conviction. Id. at 2. Respondent claims that criminal proceedings for petitioner's assault and battery case are still pending and that the January 14, 2019, date is simply the date the San Joaquin County Superior Court denied his habeas corpus petition. See ECF No. 29, fn. 1-2. Regardless, even if petitioner was duly convicted at the time of filing this petition, for which there is reason to doubt, it appears that he did not appeal this conviction to the California Supreme Court. See ECF No. 1, pg. 3.

         B. Current Federal Petition

         This case proceeds on petitioner's petition filed on February 6, 2019. See ECF No. 1. Petitioner raises the following grounds for relief:

Ground 1 Petitioner not afforded a phone calls in violation of Penal Code § 851.5.

Ground 2 Charge of assault and battery lacked Corpus dilecti where alleged “VICTIM/WITNESS” received no injuries.

Ground 3 Prosecution withholds from the Court the fact that police Report explicitly denies intent and lacks corpus dilecti.

Ground 4 Successive prosecutions for the same offense that has already been settled violating Penal Code § 654.

ECF No. 1, pgs. 4-5.

         II. DISCUSSION

         In his motion to dismiss, respondent argues the petition must be dismissed ...